Wednesday, July 7, 2010

Last week's Senate confirmation hearing on the Elena Kagan Supreme Court nomination proved to be, as expected, a rather listless affair. President Obama had picked for the high court a nominee almost sure to raise no passionate opposition, and she didn't.

Nearly a century ago, in 1916, President Woodrow Wilson chose the opposite course. Wilson named for the high court a public figure absolutely certain to set the nation ablaze with passion. He nominated attorney Louis Brandeis, then the nation's most famed progressive critic of America's rich and powerful.

The opposition of those rich and powerful would be immediate and deep. They despised Brandeis. Senator Thomas Walsh of Montana, a Brandeis backer, would explain why. Louis Brandeis, Walsh noted, "has not stood in awe of the majesty of wealth."

We now have a magisterial new biography of Louis Brandeis, a volume of nearly 1,000 pages that never lags - in part because author Melvin Urofsky writes so well, in part because Brandeis led such a fascinating life.

Brandeis, this new biography makes clear, didn't figure to become a scourge of grand fortune. He grew up in a prosperous and cultured family in Louisville, matriculated at Harvard, and then went on to establish a thriving commercial law practice in Boston. By age 34 in 1890, Brandeis was earning over $50,000 a year, the equivalent of more than $1 million today.

The young Brandeis would be the very model of a model Victorian-age gentleman: always prim, always proper - and always honest. That honesty would eventually upend his comfortable existence.

In the late 19th century, prim and proper young Boston gentlemen joined "good government" groups. Brandeis did, too - and took the work seriously. The young lawyer would soon realize that most all "bad government" seemed to share a common source: rich and powerful special interests.

Brandeis began taking on these special interests, first locally in Boston, then statewide, and finally at the national level. By 1907, he was confronting the empire of financier J. P. Morgan, the heaviest of Wall Street heavyweights.

Opponents blasted Brandeis as a "socialist." But Brandeis never did or said anything that merited that label. Brandeis did not want, notes biographer Urofsky, "to tear down" private enterprise. He sought to save it from the "curse of bigness," from the "great aggregations" of wealth that menaced democracy.

If that wealth went unchallenged, Brandeis believed, society would likely see upheaval - and who knew what the end product of that upheaval would be?

"The rising resentment at plutocratic action will make itself severely felt," Brandeis confided in a letter to his brother. "After all, we are living in a Democracy, & some way or other, the people will get back at power unduly concentrated, and there will be plenty of injustice in the process."

The people, Brandeis would warn in a public address, are "beginning to doubt whether there is a justification for the great inequalities in the distribution of wealth, for the rapid creation of fortunes." And the people, he would add, "show evidence on all sides of a tendency to act."

Brandeis would go on to play a key role in the early Woodrow Wilson administration, and help craft the legislation that brought the first sweeping federal regulation of the corporate state. He would later look back fondly on 1913 and 1914 as "the only time in recent American history when rich men had not had an undue influence with an administration."

In 1916, Brandeis won his Supreme Court nomination fight and would serve nearly two dozen years as a justice, most of that time in a distinct philosophical minority. He would discuss, in dissents, the "gross inequality in the distribution of wealth and income which giant corporations have fostered" and predict, in the 1920s, that the nation's growing inequality would lead to no good.

In the 1930s, with the coming of Depression and New Deal, the ideas that Brandeis had championed years earlier would bear new fruit, in bills like the Glass-Steagall Act, the financial reform legislation that would essentially tame Wall Street for the next 50 years.

But Brandeis, notes Urofsky, wanted checks on fortune that went beyond what the New Deal was contemplating in the 1930s. He wanted to "increase sharply the income tax at the upper ends of the spectrum," on corporations and on individuals alike, and "impose a steep federal inheritance tax to limit the amount that any one person could pass down to the next generation to $1 million."

Brandeis would retire in 1939 and pass on two years later. He would likely have taken great pride in the much more equal United States that began to emerge in the 1940s after his death. For good reason. He helped create it.